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There is a statutory requirement that when there is a Fail on the Approved Screening Device at the roadside (ASD), that the officer also have reasonable grounds that the person’s ability to drive a motor vehicle is affected by alcohol.

The relevant section of the Provincial Law – the Motor Vehicle Act, R.S.B.C., provides that:

Automatic Roadside Driving Prohibition215.41 (1) In this section, “driver” includes a person having the care or control of a motor vehicle on a highway or industrial road whether or not the motor vehicle is in motion.

(2) In this section and in sections 215.42, 215.43, 215.47 and 215.5:

“approved screening device” means a device prescribed by the Lieutenant Governor in Council for the purposes of this section;

“fail” means an indication on an approved screening device that the concentration of alcohol in a person’s blood is not less than 80 milligrams of alcohol in 100 millilitres of blood;

“warn” means an indication on an approved screening device that the concentration of alcohol in a person’s blood is not less than 50 milligrams of alcohol in 100 millilitres of blood.

…
(3.1) If, at any time or place on a highway or industrial road,

(a) a peace officer makes a demand to a driver under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device and the approved screening device registers a warn or a fail, and

(b) the peace officer has reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol,

the peace officer, or another peace officer, must,

(c) if the driver holds a valid licence or permit issued under this Act, or a document issued in another jurisdiction that allows the driver to operate a motor vehicle, take possession of the driver’s licence, permit or document if the driver has it in his or her possession, and

(d) subject to section 215.42, serve on the driver a notice of driving prohibition.

Often the officer does not address these grounds specifically in his or her report. This is a possible area of attack. You should contact us IMMEDIATELY if you want to hire us. Tel: 604.719.1360, or email: WABCLawyers@aol.com or send case inquiry.

I have even seen the officer comment that the person’s ability was NOT affected by alcohol, but the automatic check box on the Notice of Prohibition seems to conclude both a warn or fail and the grounds exist, despite the officer not turning his or her mind to this statutory conjunctive requirement.

The court, through Justice Dley, in Wilson v. OSMV, held, properly, that there is no presumption, rebuttable or otherwise, that a specific reading on the ASD, warn or Fail, equates with reasonable grounds that a person’s ability to operate a motor vehicle is affected by alcohol.

This is why in the Criminal Code DUI sections, there are separate offences of over.08, and also impaired. They are distinct inquires.